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This article was republished with the permission of HWL Ebsworth Lawyers
Redman v The Proprietors – Fairway Island GTP 107328 [2020] QDC 68
A recent decision of the District Court at Brisbane could have significant consequences for Bodies Corporate and unit owners in Queensland alike in respect of short term letting and the use of services like Airbnb.
On 18 October 2019, the Magistrates Court at Southport approved a by-law that allowed a scheme to prohibit short term letting. At the time, that decision was largely confined to schemes established and governed by the Building Units and Group Titles Act 1980, meaning it applied to about 1% of all schemes in Queensland.
That decision was appealed to the District Court at Brisbane. The District Court’s decision, properly applied, could now mean that all schemes can prohibit short term letting, including those established and governed by the Body Corporate and Community Management Act 1997 (the other 99%).
“[45] … In its ordinary meaning, to use a building for a residential purpose does not include using it for the purpose of letting it out to others (and those others using it) for holidays or other temporary accommodation.
[46] While the dividing line between holiday or temporary use and a degree of permanence in use as a residence or abode may not be easy to draw, it is open to the body corporate to draw such a line, provided always that it does so for the relevant purpose – in this case, for the use or enjoyment of the lots and the common property. There is some element of discretion in choosing one month, or any other criterion, as the line (indeed, the period of one month itself is flexible, as different months last between 28 and 31 days). But, provided that it is not drawn capriciously, a by-law may draw such a line for the proper purposes of a body corporate and its members.”
In other words, the restrictions on by-laws that apply to BCCMA schemes simply do not apply to short term letting because it is neither residential use nor use for a residential purpose, despite being lawful.
This article was written by Mario Esera, Partner – HWL Ebsworth Lawyers
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